This week the Supreme Court of Canada released the decision in Cuthbertson v. Rasouli, involving a dispute between physicians and the family members of a patient who was on life support.
Summary of the Majority Decision
The dispute involved a patient who experienced severe brain damage from an infection following the removal of a benign tumour, resulting in what the physicians called a persistent vegetative state. The patient was kept alive through life support, and the physicians wanted to stop this care over and above the objections of the patient’s family members, who expressed the patient’s prior expressed intention to be kept alive.
Both the trial level court and the Ontario Court of Appeal affirmed that the proper place to make this determination was at the Consent and Capacity Board (CCB), an administrative tribunal established under the Health Care Consent Act. The Act establishes the procedures for substitute decision making and the hierarchy of health decision makers for individuals who no longer have capacity.
The majority affirmed the decisions of the lower courts and dismissed the appeal, finding that the withdrawal of life support required consent of the patient’s substitute decision maker, and that refusals were properly challenged before the Board.
The physicians had refused to appear before the Board and instead claimed the proper venue for the dispute was in the courts as it was outside the scope of the HCCA. The minority dissent by Justices Abella and Karakatsanis held that the HCCA did not apply, and the dispute was properly governed under the common law.
The physicians argued that the withdrawal of life support did not meet the definition of “treatment,” and so the consent requirement under s. 10 of the Act was not applicable. They argued in the alternative that the withdrawal of treatment is not itself treatment, and also does not require consent. Finally, the physicians argued that being forced to provide life support when they felt it was not medically warranted contravened their personal ethics.
. . . anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan . . . .
[emphasis in the original]
The HCCA does not use language requiring treatment to be medically beneficial or medically indicated, and life support can be included in the definition of treatment for therapeutic and preventative purposes. The majority indicated that in some circumstances the distinction between treatment and withdrawal from treatment are impossible to maintain, especially where such withdrawal itself consists of medical interventions for health related purposes that interfere with a patient’s body. Finally, the majority held that ethical tensions are inherent to medical practice, but the law is clear that consent is required irrespective of ethical beliefs.
Dissent and Response to Dissent
Several other Canadian jurisdictions include statutory schemes to resolve treatment decisions for patients without capacity, including Manitoba, B.C., Yukon, Quebec, and P.E.I. The mechanisms for each of these vary slightly from the Ontario model.
Absent a statutory scheme, the common law provides that physicians cannot override the patient’s wishes absent emergent circumstances, and informed consent must be obtained. The common law appears contradictory when a patient lacks capacity to express this consent explicitly, and these disputes are resolved by the courts. The majority in Rasouli expressed a reluctance for courts to interfere with such decisions where a competent administrative tribunal was available. The dissent however, takes a strong position on the common law as it applies to this case:
 The right to refuse treatment is well entrenched in the common law. However, the reverse is not true. I know of no, nor have I been directed to any, Canadian decision holding that consent is a necessary condition for the withholding or withdrawal of treatment generally. In my view, there is no general common law right or entitlement to treatment that a doctor considers medically ineffective or contrary to the professional standard of care.
Hillary Young, who the dissent cites at para. 185, also points out in the McGill Journal of Law and Health that “A review of the common law of consent to medical treatment gives little reason to think it creates entitlements to treatment.” The rationale used by the Ontario Court of Appeal in Rasouli, and adopted by the majority in the Supreme Court, assumes that the removal of life support would be accompanied by palliative care as described below:
 …removal of the ventilator is a necessary precondition to the administration of end-of-life palliative care and end-of-life palliative care is a necessary response to removal of the ventilator. The two go hand in hand. One is integrally linked to the other. And they foretell a single certain result – the respondent’s imminent death once the ventilator is removed.
 The concept of palliative care in these circumstances necessarily recognizes that death is imminent. Once life sustaining measures are withdrawn, as they must be before end-of-life palliative care is administered, there is no turning back. The patient has no other options or choices. Death is a certainty. All that remains is to keep the patient as comfortable as possible until the end comes.
 That is the essence of end-of-life palliative care. And where it is recommended as an adjunct to the withdrawal of life support, the two, in our view, cannot be separated. They are a “treatment package” and that is how they should be viewed for purposes of the Act.
Young suggests this reasoning was in turn adopted from the Court of Queen’s Bench of Manitoba decision in Golubchuk v. Salvation Army Grace General Hospital et al. She proposes that the HCCA does not create an entitlement to treatment life-sustaining treatment, a position adopted by the minority dissent in Rasouli at paras. 157 and 178. Where the withdrawal of treatment does not involve palliative care the dissent suggests at para. 163 that it may not be invasive.
The majority rejected this analysis, indicating that the removal of life support would entail the very invasive extubation to remove the mechanical ventilation, and the common law tort of battery would therefore still apply.
Steps to Follow for Withdrawal of End of Life Treatment
The majority provided an outline at para. 116 of the steps which should be followed where the physicians and substitute decision maker disagree about whether life support should continue:
1. The health practitioner determines whether in his view continuance of life support is medically indicated for the patient;
2. If the health practitioner determines that continuance of life support is no longer medically indicated for the patient, he advises the patient’s substitute decision-maker and seeks her consent to withdraw the treatment;
3. The substitute decision-maker gives or refuses consent in accordance with the applicable prior wishes of the incapable person, or in the absence of such wishes on the basis of the best interests of the patient, having regard to the specified factors in s. 21(2) of the HCCA;
4. If the substitute decision-maker consents, the health practitioner withdraws life support;
5. If the substitute decision-maker refuses consent to withdrawal of life support, the health practitioner may challenge the substitute decision-maker’s refusal by applying to the Consent and Capacity Board: s. 37;
6. If the Board finds that the refusal to provide consent to the withdrawal of life support was not in accordance with the requirements of the HCCA, it may substitute its own decision for that of the substitute decision-maker, and permit withdrawal of life support.